A blog by Eapen Thampy

Monthly Archives: December 2010

This was posted on bulletin boards at Yale this fall semester after a couple episodes of police tasing students. The police in New Haven have also been using SWAT raids to enforce compliance with the underage drinking laws.

There is a great story about how Lawrence Tribe’s son used to be a college policy debater back in the 80’s. He made a practice of running affirmatives that were vulnerable to federalism criticisms, and opponents would often indeed respond with federalism arguments citing Tribe’s latest federalism scholarship, to which Tribe’s son would respond with a list of author indicts (mostly in the vein of “my dad’s frickin’ crazy”).

Quick thought: A culture’s origin mythology is usually the basis for much of its legal architecture. As LLSV (1997) note, there are some legal architectures that are vastly superior to others (and they discuss a lot of comparative data on civil vs. common law regimes). Common law regimes are generally superior to civil law regimes in terms of economic and human welfare outcomes. Part of the argument is that common law regimes tend to be principle-based, with legislatures making laws and courts deciding dynamically how the legal principles, the law, and the specific case interact; this allows common law regimes to efficiently catalyze economic development through the efficient evolution of things like tort law. Common law regimes also tend to conceptualize property rights in far more generous terms than civil law regimes. Civil law regimes delegate a lot more importance and foundation to legislative law; you can think of the legislative law as creating lines on a court and judges as referees who are limited to far more technical calls. Civil law regimes tend to be inflexible and less efficient, though there are many unanswered questions. You can think of America or Britain as modern bastions of common law, and French law as a good example of a regime based on civil laws.

So here’s the challenge. Origin myths are foundational “oral constitutions” that provide direction for the legal architecture of a culture. We can analyze some basic ways in which they differ through their conceptualization of property rights, and then look at outcomes. There should be some very interesting comparative work to be done in all directions there, I’m sure, and there is a lot of data in human history, so there should be a lot of interesting natural experiments that can be surveyed.

So here is an interesting post by Patrick Tuohey, editor of the Missouri Record (a publication that has previously featured at least one essay by yours truly). In this post, Tuohey very uncharitably slams Show-Me Institute economist Joe Haslag’s latest paper on taxation (disclosure: Haslag taught my Introduction to Macroeconomics class circa 2005). Here is an excerpt from Tuohey’s post:

I’ll take the authors’ word for it because I cannot make heads of tails of the essay itself. It begins with,

Which tax structure — sales or income — is most preferred by the typical Missourian? For the purposes of this essay, the notion of “most preferred” is formalized as lifetime welfare. Both sales and income taxes are distortionary.

That is when I skipped the following twelve pages to get to that summary. The writing is so opaque that I defy anyone without an advanced degree in economics to read and understand the whole essay. This is a shame, because Show-Me has such lofty goals. Their website states that they,

…study public policy problems and develop proposals to increase economic opportunity for ordinary Missourians. It then promotes those solutions by publishing studies, briefing papers, and other educational materials, which help policymakers, the media, and the general public gain a better understanding of the issues.

But this essay helps exactly no one. In fact, I’d argue that such argot-laden documents actually hurts the Institute’s mission because well-meaning journalists and policy-makers are less likely to seek their input if they fear they are going to be hit with such… garbage.

At the top, let me say I meet Tuohey’s sole challenge: I have read (and purport to understand) the entire essay, although I do not have an advanced degree in economics. I will say that the essay itself has a clear and understandable summary, and you do need to understand some mathematics to grasp the more technical sections. A lay reader might be comfortable reading the less technical sections, though there might be a couple definitions to look up (but that’s why Al Gore invented Wikipedia, right?). We might also have a discussion about how well I understand the essay, but that that is a separate issue.

Now, I feel bad that Patrick “cannot make head or tails of the essay itself”. But I do not think that Patrick’s observation of his inability to read or comprehend the essay is sufficient evidence for the claim that Haslag’s writing is universally “opaque”. For one, I think that the sole part of the essay that Tuohey excerpts is crystal clear; there is a question asked (What kind of tax do Missourians prefer?), a clarifying statement (we are measuring what Missourians prefer using this notion of total lifetime “benefit”), and a statement that both income and sales taxes are distortionary (which is simply the observation that taxing products distorts the market price for the good or service taxed).

Here’s the thing. If Tuohey can’t understand this essay, that’s fine. It’s one thing to post asking for clarification. It’s entirely another to slam someone else’s work as “garbage” and to say that this “essay helps no one” without a coherent argument for your claim. Certainly reading the essay helped me; I now know and understand more about Ribelo’s AK model (1991) and the dynamics of income taxation, though emulating Haslag’s work remains far beyond my poor capabilities.

Far from being “well-meaning”, I have another word for Tuohey and journalists like him: lazy. Or perhaps: arrogant, rude, or crass. It would behoove Tuohey to post an apology and to (humbly) ask for clarification. If Tuohey does not, then we know he is not intellectually honest.

I was thinking about the notion of Prohibition lately, and realized there was a valuable insight to be garnered from the telling of the Original Prohibition story, or at least the way I see it.

What I refer to as the Original Prohibition, of course, was Adam & Eve’s experiment* with the mind-altering “fruit of the tree of the knowledge of good & evil”. And here is the crux of the story. It is a story about free will, and about how divine and human will interact, and the consequences of your choices.

I have the suspicion that many people (on both the right and the left) receive this narrative and think that the lesson from the story was that God’s Prohibition was not strong enough. It was not strong enough because it did not work to prevent our prototypical human ancestors from making a choice that brought misery and the profane to human existence. If Adam & Eve could have been prevented from eating that fruit, perhaps, the human race would not be in this ambiguous, pitiable state of earthly existence. The divine would be the sole content of human experience, and who wouldn’t want that?

But having the freedom to choose involves the awkward notion of living with the consequences of your actions. Not the false, legal, human-created consequences (at least in consensual actions where there is no victim), but the consequences of living with the knowledge, and the impact of your free will.

I have the sense that people who support prohibitions on consensual, non-tortuous activity really have the mindset that if we can just engineer society to this end or that end that we can prevent all bad outcomes, all miserable outcomes. But this is the worst kind of foolishness. Society is best served by criminalizing tortuous behavior, not non-tortuous behavior. To criminalize non-tortuous behavior is to subsume the notion of free will and human choice beneath the spectre of a glorious and impossible future.

The end result of criminalizing consensual, non-tortuous behavior, is that you create markets and industries that are dependent on the existence of the law and the need for its enforcement and not the real demand for goods and services by individuals. Ultimately, you can criminalize the entire canon of human activity through some extension of the law. The phrase “slippery slope” is appropriate here.

This is the ugly machine of fascism. It is the request to abrogate your rights and your choices for the ever-greater pursuit of security. But it is an ontological abyss. From a vantage point above, one can see the Gulag below, the (in)evitable promise of the Soviet Dream.

*One might replace the Judeo-Christian origin story with any of the many other different origin stories of similar structure and plot for the purposes of this argument.

Karl Miller writes in his Missourian editorial that he is “siding with Chief Burton” on the manner in which the Dresner affair was handled. Miller has many things to say, but I wish to focus on the mistake Miller makes in describing this situation is as “a purely personal matter”.

It is clear to me that the only “purely personal” part of the story is the love story between Columbia Deputy police chief Tom Dresner and Columbia Police Public Information Officer Jessie Haden. Karl Miller is right to say that this is a personal matter. But official misconduct is not, and unfortunately Tom Dresner is guilty not only of the offense of conducting a secret affair with a direct surbordinate, he is guilty of compromising his integrity as a public servant, and that is a far more public issue that deserves to be addressed. We might ask the following follow-up questions:

Did Tom Dresner and Jessie Haden use a motel for their rendezvous, or city facilities?

Did Tom Dresner and Jessie Haden conduct their affair on the city’s clock, or did they manage to keep everything for after work?

Did other officers know about this affair, which was conducted over a period of at least 7 years?

If other officers knew, why did they choose to keep the misconduct of a superior officer under wraps?

If other officers knew about the affair, were they ever in a position to put the screw on Dresner to cover up misconduct or to obtain promotions and other favors?

Karl Miller might retort that there is no reason to believe that Tom Dresner and Jessie Haden ever did more than conduct a totally secret affair on their own time and property and that Dresner’s integrity is otherwise intact. Unfortunately, this is not the case either. We have known for years that the police department was structurally dysfunctional; it was only in the last two years that the police had a functional Internal Affairs division, and the only external check on internal misconduct is a toothless and ineffective Citizens’ Police Review Board.

This is the important point. It is the structure of the police department that is our true enemy here, not the individual officers. There are individual officers in Columbia’s police department who deserve prosecution and public shaming, but without reforming the structure of the police department, Columbia will continue to see lawsuits over the conduct of its police officers and the protocols that guide them.

The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.

He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

He has refused for a long time, after such dissolutions, to cause others to be elected, whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.

He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers.

He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.

He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.

He has affected to render the Military independent of and superior to the Civil Power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

For quartering large bodies of armed troops among us:

For protecting them, by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States:

For cutting off our Trade with all parts of the world:

For imposing Taxes on us without our Consent:

For depriving us in many cases, of the benefit of Trial by Jury:

For transporting us beyond Seas to be tried for pretended offences:

For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies

He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.

He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.

He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.